Introduction
Pregnancy scams have become a common phenomenon in many contemporary African societies, including Ghana, and manifest themselves in a variety of ways. In this study, the term “pregnancy scam” or “fraudulent representation of pregnancy” is used to refer to a situation where a woman, either with the knowledge that she is not pregnant or with no reasonable cause to believe that she is, falsely represents to her spouse or sexual partner that she is pregnant by him, usually for her own self-interest.Footnote 1Such misrepresentations are mostly intended to induce the spouse / partner to take a decision or act in a way that benefits the woman claiming to be pregnant or to facilitate the realization of a hidden agenda. This type of fraud should not be confused with paternity fraud or misattributed paternity, which is misrepresentation regarding the identity of a child’s (or an unborn child’s) biological father.
Pregnancy scams used to be quite rare in Ghana; however, since the beginning of the 21st century, several cases have been reported in the Ghanaian media. The most dominant motivations for pregnancy scams are: (1) for material or monetary gain or to extort money – here, some culprits collect money from their partners under the guise of terminating a pregnancy, others receive monies and gifts from their partners as a maintenance allowance or as a form of reward for allegedly being pregnant;Footnote 2(2) to induce marriage or keep a partner in a relationship;Footnote 3(3) to please or get the attention of a husband / partner;Footnote 4and (4) to facilitate the stealing of a child (ie serving as part of a plan to steal a child).Footnote 5
Though these media publications are useful in bringing the pregnancy scam phenomenon to the attention of society and enhancing public awareness, an analysis of the legal implications of the practice by relevant academics is virtually non-existent in the literature. This is because there is currently no statute that deals specifically or explicitly with pregnancy scams in Ghana and seemingly no decided civil litigation case that directly borders on the subject, leaving little to build on. However, it turns out that, as Martin Bunzl rightly notes, “a little is all we need” to bridge the knowledge gap.Footnote 6Drawing on some useful judicial decisions, relevant statutes and academic literature, the present study offers an exposition of the legal implications of, and the criminal justice response to, the phenomenon of pregnancy scams in contemporary Ghana. It explores the extent to which this type of fraud is (non)actionable, highlighting important legal principles or doctrines and controversies.
Pregnancy scams as criminal offences
In Ghana, offences bordering on the false representation of a pregnancy may be addressed through either criminal or civil proceedings. Even though there is no law that categorically criminalizes false representation of a pregnancy in the country, aspects of the practice may contravene various sections of the Criminal Offences Act 1960 (Act 29), as amended, and other criminal statutes. Hence the criminal justice system intervenes in matters relating to a pregnancy scam only when the scam is directly linked to an act that criminal statutes categorically prohibit. For instance, law enforcement authorities are highly likely to intervene when a pregnancy scam is linked to the stealing of a baby contrary to section 93 of the Act, involves defrauding by false pretence contrary to section 131, is associated with the publication of a false statement or report that causes or is likely to cause fear and alarm to the public contrary to section 208, or involves the deceit of a public officer contrary to section 251, among others.
For example, under section 251 of the Act, a woman faking pregnancy or deceiving a partner into believing that she is pregnant by him when she knows that she is not is not necessarily criminal conduct. It becomes a criminal offence (a misdemeanour) only when the untruth is communicated directly to a “public officer acting in the execution of a public office or duty” by the woman herself. An instructive case is Republic v Mensah, in which a heavily “pregnant” 27-year-old woman left her home for a stroll one morning but did not return.Footnote 7Later that day, an unknown person called her husband to tell him that his wife had been kidnapped, and demanded ransom money for her release. The husband reported the matter to the police, who launched a massive search for her. Approximately five days after her disappearance, she reemerged, looking unkempt. She told several persons that she and 21 other pregnant women were kidnapped, and that she gave birth while in “captivity” but her alleged captors took the baby away. Upon a thorough investigation, law enforcement authorities established that she was never pregnant (she had been wearing a pregnancy prosthesis) and was never kidnapped – all had been staged. She was charged with the offences of deceiving a public officer and publishing false news to cause fear and alarm to the public.
The Circuit Court accepted the prosecution’s claim that the accused’s alleged pregnancy had been fabricated or never existed. However, it held that the prosecution could not convincingly prove that this untruth was told by the accused herself to the officers who investigated the case. Rather, the deceit was directed at the husband, not the police. Since the husband was not a public officer and was not executing a public duty, she was acquitted on the charge of deceit of a public officer. However, she was found guilty of staging her own abduction and making the public believe that she had been kidnapped, thereby causing fear and alarm.Footnote 8In another case, a 24-year-old woman who stole a baby and presented the child to her husband as their newborn, after she had earlier deceived the husband into believing that she was pregnant, was handed a five-year jail sentence under section 93 of the Act.Footnote 9
Pregnancy fraud may also contravene sections 131–33 of the Criminal Offences Act – defrauding by false pretence – depending on the circumstances. Section 131 stipulates that “[w]hoever defrauds any person by any false pretence shall be guilty of a second degree felony”. Section 132 explains that “[a] person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything”, while section 133(1) defines false pretence as “a representation of the existence of a state of facts made by a person, either with the knowledge that such representation is false or without the belief that it is true, and made with an intent to defraud”. For instance, in 2011, a woman who claimed to be pregnant reported her partner to the Domestic Violence and Victim Support Unit (DOVVSU) and the Department of Social Welfare for failing to cater for her. The matter was referred to the Family Tribunal, which ordered the partner to pay a maintenance allowance every month. However, suspecting that the pregnancy claim was false, the partner stopped paying the money and requested that a pregnancy test be conducted. The test confirmed that the woman was not pregnant and that she had tied rags around her belly. She was subsequently charged with deceit of a public officer and defrauding by false pretence.Footnote 10
It is evident that a woman may be violating section 131 of the Act if she deceives a spouse into believing that she is pregnant by him, and, relying on this fraudulent representation, the man gives her money, for instance, or buys her a car or property. However, it would be inadvisable for a man to play the victim and file a complaint against a partner who scammed him by collecting money to facilitate the termination of what he believed was a genuine pregnancy, because section 58 of the Criminal Offences Act criminalizes abortion, intent to cause abortion and facilitation of abortion. Section 58(1)(b) of the Act states that any person who:
“(ii) induces a woman to cause or consent to causing abortion or miscarriage;
(iii) aids and abets a woman to cause abortion or miscarriage;
(iv) attempts to cause abortion or miscarriage; or
(v) supplies or procures any poison, drug, instrument or other thing knowing that it is intended to be used or employed to cause abortion or miscarriage,
shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding five years.”
It could be argued that a man who gave money to a spouse or partner for the termination of a pregnancy that he believed at the time to be genuine may not dare to seek redress or press charges against the woman if he later finds out that the supposed pregnancy never existed and that he has been scammed. Thus since the man had the intent to cause an abortion, filing such a complaint with law enforcement authorities may result in the arrest and prosecution of the complainant himself for attempting to cause an abortion or for conspiracy to aid and abet a woman to cause an abortion.
Pregnancy scams as a civil matter
The well-publicized Mensah case and other pregnancy scam episodes reported in the media have provoked an ongoing debate as to whether victims of pregnancy fraud can seek redress through civil proceedings and, if so, under what circumstances. This section seeks to gain a deeper knowledge of courts’ apparent attitudes towards premarital sexual intercourse and pregnancy scam-related civil actions. There is no question that in Ghana, matters relating to misrepresentation, deceit or fraud can also be addressed through civil proceedings.Footnote 11In Turqui and Bros v Dahabieh, it was held by the Court of Appeal that a civil action may be legitimately brought “against a party who knowingly or recklessly, whether by conduct or words, used unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party”.Footnote 12In Fidelis v Mikado, the plaintiff’s wife told him that she was pregnant by him; the man denied responsibility for the pregnancy, causing the woman to lodge a complaint with the DOVVSU and the Department of Social Welfare against him.Footnote 13To avoid scandal, the man agreed to pay a maintenance allowance monthly until the woman delivered. When the woman gave birth, a paternity test was conducted, which confirmed that the plaintiff was not the father of the child. He then sued for deceit and demanded damages, including a refund of the maintenance allowance paid and the cost of the paternity test. The High Court found the defendant liable and granted the reliefs sought.Footnote 14
In Lazarus Estates Ltd v Beasley, Lord Denning stressed that “[n]o Court … will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud, fraud unravels everything.”Footnote 15However, it appears that an action by a pregnancy fraud victim might be entertained by the courts only if he and the defendant were married at the time when the sexual act(s), based on which the fraudulent representation was made, occurred. Thus suing for pregnancy fraud arising from premarital sexual intercourse between the plaintiff and the defendant may be futile, as shall be shown in this discussion.
It seems that in Ghana, the courts are yet to deal with a civil action that directly relates to fraudulent representation of pregnancy, even though they have decided cases arising from premarital sexual intercourse between parties on several occasions. However, several courts in various jurisdictions (particularly the USA) have dealt with the issue of pregnancy scams within the context of marriage and annulment and have arrived at divergent conclusions. Therefore before exploring the possible position of the Ghanaian courts on the subject of pregnancy fraud, it is useful to briefly discuss some of the relevant cases decided in some US states; this will facilitate a better appreciation of the discussion.
Relevant judicial decisions in the USA
As already mentioned, most of the pregnancy fraud-related cases decided by courts in the USA centre on the annulment of marriages on the ground of a fraudulent representation of pregnancy. These are generally cases where a woman who has engaged in premarital sexual intercourse with a man falsely represents to him that she is pregnant by him when she knows that she is not. The man, relying on this fraudulent representation, marries the woman only to discover later that his new wife is not pregnant, and consequently files for annulment. The courts in some US states have denied requests for annulment, while others have granted them.
After examining a number of relevant judicial decisions, Gary Bahr notes that annulment requests or lawsuits are typically denied “on either the guilt of the plaintiff, the in pari delicto doctrine, the social obligation of the plaintiff, the claim that the fraud is not material to the marriage contract, or a combination thereof with an occasional reference to public policy”.Footnote 16Other grounds for denying annulment are: (1) voluntarily cohabiting as husband and wife after the discovery of the pregnancy fraud; (2) the misrepresentation not being sufficient to deceive an ordinarily prudent or reasonable person; and (3) the mere faking of pregnancy not being sufficient to warrant the granting of a divorce or an annulment. For instance, in Mason v Mason, the Supreme Court of Arkansas pronounced: “We do not think that, where there is nothing more than a false representation as to pregnancy, the parties having been indulging in sexual intercourse with each other, it is sufficient to afford grounds for annulment of the marriage.”Footnote 17A similar argument was made by the Supreme Judicial Court of Maine in Whitehouse v Whitehouse: “[W]e … hold that a husband who was guilty of illicit sexual relations with a woman before marriage, cannot, after marriage and more than four months’ cohabitation with her, in equity and good conscience put her from him by annulment, even if she induced the marriage through fraud.”Footnote 18In Mobley v Mobley, the Supreme Court of Alabama refused to grant an annulment on the grounds that the plaintiff was in pari delicto due to the illicit or premarital sexual intercourse, and that he was required to honour his social obligation to the defendant as the alleged pregnancy fraud was not material to the marriage.Footnote 19Another interesting case is Levy v Levy: approximately three or four days after the plaintiff had sexual intercourse with the defendant, the defendant told him that she was pregnant by him and that she would commit suicide if he did not marry her. This representation, which turned out to be false, induced him to marry her. The Supreme Judicial Court of Massachusetts held, inter alia, that this representation was not “of a nature to deceive an ordinarily prudent man who, but for the representations, would not have consented to the marriage”.Footnote 20A reasonable man would have known that the pregnancy claim was false, as a woman ordinarily cannot detect pregnancy within three or four days after engaging in unprotected sexual intercourse.
Annulments are generally granted on the following grounds: (1) that marriage is a civil contract which requires the spontaneous or free consent of both parties; hence a contract formed with fraudulently induced consent is void; (2) where, if the man had known that no pregnancy existed, he would not have entered into the marriage contract, making the fraudulent representation material to the marriage; and (3) where to deny an annulment would be to penalize the plaintiff not for his illicit intercourse, but rather for his commendable conduct in endeavouring to right the wrong he believed would result if he did not marry the defendant, among others.Footnote 21One notable case in which annulment was granted is Masters v Masters, where the defendant supported her pregnancy claim with certificates and documents, executed by a reputable doctor, that confirmed the pregnancy.Footnote 22This information induced the plaintiff to marry the defendant. Upon discovering that the defendant was not pregnant, and that the pregnancy claim had been fabricated, the plaintiff commenced proceedings for annulment. The Wisconsin Supreme Court granted the annulment, reasoning that the representations of the defendant were material as a matter of law, and that the plaintiff would not have consented to the marriage if she had not feigned pregnancy. A similar conclusion was reached in the Kentucky case of Parks v Parks.Footnote 23
The decisions in Masters and Parks were inspired by the New York courts’ decisions in Di Lorenzo v Di Lorenzo, Gordon v Gordon and Carlson v Carlson.Footnote 24In Di Lorenzo, the Court of Appeal of New York made the following pronouncement: “If the plaintiff proves to the satisfaction of the court that, through misrepresentation of some fact, which was an essential element in the giving of his consent to the contract of marriage and which was of such a nature as to deceive an ordinarily prudent person, he has been victimized, the court is empowered to annul the marriage.”Footnote 25The facts of this case were that the plaintiff left New York for a period of time shortly after having sexual intercourse with the defendant. Upon his return, the woman represented to him that she had been pregnant and given birth while he was away. She then showed him a child that she claimed was theirs; relying on the defendant’s representations, the plaintiff married her. It turned out that the child was not hers and that she had not been pregnant.
The apparent position of the Ghanaian courts
In Ghana, some courts and academics have asserted that it is settled law that the act of having sexual intercourse with a person to whom one is not married is contrary to public policy as it directly or indirectly promotes promiscuity and immorality.Footnote 26For instance, exploring the principles and concepts of contract law as they apply in Ghana, Dowuona-Hammond opines that “[g]enerally, any contract which directly or indirectly promotes sexual immorality or which is contra bonos mores is treated by the law as illegal on grounds of public policy. Such contracts fall under the category of contracts which are contrary to good morals.”Footnote 27In other words, since the man engaging in premarital sexual intercourse with a woman is in pari delicto, he may not complain to the courts of any resulting transgression or misconduct of the woman. This suggests that a pregnancy fraud-related lawsuit arising from premarital sexual intercourse between the two parties will fail on the in pari delicto and ex turpi causa non oritur actio principles. The term in pari delicto refers to a situation where the parties are equally at fault or are all guilty of an illegal transaction or immoral conduct from which an action or alleged wrong arises.Footnote 28Ex turpi causa non oritur actio, on the other hand, states that plaintiffs should not be permitted to pursue legal relief or recover damages if the action arises from their own immoral or illegal conduct, irrespective of the other party’s involvement.Footnote 29The two doctrines are a subset of the more general equitable doctrine of unclean hands.
Two of the earliest relevant legal actions that border on sexual immorality are Pearce v Brooks and Upfill v Wright.Footnote 30In these two cases, it was held that any person who supplies something or enters into a contract or an agreement that s/he knows will or is likely to encourage or promote immoral conduct cannot recover the agreed price or any losses incurred from the transaction through a legal action. In Pearce, the defendant, whom the plaintiff knew to be a prostitute, hired a horse-drawn carriage from the plaintiff, to be used to attract customers (ie to advertise her prostitution business). When the defendant failed to make full payment for the carriage after using it, the plaintiff sued for the outstanding amount, but the action failed after the defendant raised the illegality or unclean hands defence.
Upfill also concerned a man who, through his agent, rented a property to a woman knowing that the rent would be paid by a man who was keeping her as his mistress, and who would be visiting her to have sexual intercourse with her in the property. The court was unwilling to draw any significant distinction between prostitution and a premarital sexual act, referring to both as being two sides of the same coin. Darling J, for instance, stated: “I do not think that it makes any difference whether the defendant is a common prostitute or whether she is merely the mistress, of one man, if the house is let to her for the purpose of committing the sin of fornication there.”Footnote 31This view was backed by Bucknill J, who made the following statement: “It was urged that prostitution is one thing, and living as one man’s mistress is quite a different thing. They may differ in degree, but they both stand upon the same plane.”Footnote 32Other important cases are White v Smith, Jennings v Throgmorton and Bowry v Bennet, where the plaintiffs let a property to the defendants knowing that they were going to use the place as brothels or for prostitution. It was determined that the transactions were affected by the taint of immorality, and therefore the plaintiffs could not recover any monies owed by the tenants or any losses incurred from the transaction.Footnote 33It is worth clarifying that prior to independence, the Ghanaian courts were required to rely on the decisions of the UK superior courts for guidance. Today, English case law remains an important point of reference for courts in Ghana, particularly in matters that are alien to the Ghanaian courts or on which no case law or statutory law exists. This reinforces the relevance of the aforementioned English cases to the present discussion.
In Ghana, the public policy, in pari delicto and ex turpi causa non oritur actio principles may make it almost impossible for victims of pregnancy scams to sue “offenders” if they were not legally married to them at the time the sexual intercourse and the ensuing fraud occurred. For instance, in Adablah v Nimako, the Ghana High Court dismissed the case because it “comes within the rule that out of a forbidden or immoral act no cause of action can arise”.Footnote 34In this case, the defendant (a married man) allegedly promised to buy the plaintiff a car, rent an apartment for her and support her financially, among other things, if she agreed to be his “side chick” (ie kept woman). Relying on the defendant’s promise and assurances, the plaintiff entered into a sexual relationship with him, but when he failed to fully honour his part of the alleged agreement, she sued for what appeared to be a breach of contract and deceit, among others. Drawing on the UK courts’ reasonings in Pearce and Upfill, the court dismissed the action on the grounds that the financial support and other benefits that the plaintiff expected from the defendant were meant to be the price of her allowing him to fornicate with her – a conduct inconsistent with public policy. Even though this action is not related to a pregnancy scam, the fact that it arises from premarital sexual intercourse makes the court’s decision relevant to the pregnancy scam discourse.
Discussion
It could be deduced from the sparse relevant case law that even though there may be a legal remedy or judicial relief for pregnancy fraud victims who were married to the offenders at the time the event occurred, no such remedy exists for men or victims swindled by their mistresses or unmarried sexual partners. The courts in Ghana seem to suggest that all premarital sexual relationships, including non-marital cohabitations (couples living together in a committed relationship without being married) and committed long-term relationships, are practices that go against public policy. Hence an action that borders on an alleged wrong arising directly from such a relationship must necessarily fail. However, this position is contentious. I suggest that pregnancy fraud arising from sexual intercourse between parties who are not married but are cohabiting or in a committed long-term relationship (whether cohabiting or not) should be actionable. Thus the courts’ decision to not accord cohabiting couples and couples in a committed relationship almost the same level of protection and privileges as married couples is problematic in several respects: (1) the courts’ perspective on public policy in contemporary Ghana seems misguided; (2) non-marital cohabitation has become a common if not an established practice in Ghana; and (3) the law is dynamic and should reflect the present needs and situation of society.
It is difficult, if not impossible, to offer a precise definition of public policy. Acknowledging the difficulty in determining the scope of public policy, and cautioning against over-reliance on this principle, Burrough J states in Richardson v Mellish, “it is a very unruly horse, and when once you get astride it you never know where it will carry you … it is never argued at all but when other points fail”.Footnote 35Ghodoosi identifies three categories of public policy: public interest, public security and public morality.Footnote 36Within the Ghanaian context, public policy may generally refer to established and valued communal or societal norms, mores and principles devised to promote a peaceful and harmonious communal life. To borrow Ghodoosi’s words, it aims to “safeguard the ties and mutual identities between citizens that shape and maintain societal life”.Footnote 37Conduct against public policy could thus be explained as behaviours or actions that may be detrimental or injurious to communal values and accepted norms or the general welfare and interests of the community.Footnote 38
Admittedly, Ghanaian cultures traditionally frown upon sexual intercourse outside marriage. This may explain why a premarital sexual relationship is generally classified by the courts and other academics as conduct against public policy. However, the courts fail to appreciate that like all rules, regulations and laws, public policy is dynamic. As Dixon J pointed out in Stevens v Keogh, “notions of public policy are not fixed but vary according to the state and development of society and conditions of life in a community”.Footnote 39Indeed, practices such as non-marital cohabitation and committed partnerships have now been embraced by a significant proportion of the Ghanaian population, making them an integral part of contemporary Ghanaian society.Footnote 40Several studies establish that cohabitation has become a popular alternative to marriage in Ghana.Footnote 41It has been reported that the cohabitation rate in the country increased from 8.1% in 2003 to a little over 14% in 2014.Footnote 42In a study conducted among tertiary students in Ghana, Baataar and Amadu found that 54% of the participants were cohabiting, and many of the remaining participants had the intention to cohabit in future relationships.Footnote 43The words of Obeng-Hinneh and Kpoor are noteworthy: cohabitation “is not an entirely new phenomenon in Ghana as the practice has always existed side by side with marriage. However, in recent times, the phenomenon has been on the rise.”Footnote 44It is evident that many people still find significant benefits in non-marital cohabitation relationships and committed partnerships.Footnote 45
Increased globalization and the exorbitant cost of the form of marriage ceremony that contemporary Ghanaian society “recognizes”, among other factors, have changed traditional social institutions and people’s perceptions and attitudes towards marriage, resulting in the normalization of non-marital cohabitation.Footnote 46In other words, societal attitudes have changed, with many viewing marriage as a personal rather than a mandatory choice. With cohabitation becoming increasingly popular and normal in the country, it would be unhelpful for any court to use the “against public policy” principle to dismiss a pregnancy scam-related action arising from a non-marital cohabitation or committed relationship between the parties. As Brobbey J stated in Barake v Barake: “If we should provide any meaningful service to the people of this society wherein our Courts operate, it is imperative that we in the Courts muster sufficient courage to take cognisance of the happenings in our society and ensure that our judgments duly reflect facts of common notoriety.”Footnote 47
The fact that the Ghanaian courts readily entertain actions for the so-called “breach of promise to marry” shows that non-marital cohabitations and long-term sexual relationships are neither alien nor strictly hostile to the Ghanaian culture, and that an action arising from or founded on a premarital sexual relationship may not necessarily be invalid.Footnote 48It is about time the courts saw non-marital cohabitation or a committed relationship as a completely legitimate union on its own and accorded it the protection it deserves. Wolff suggested that in determining whether to apply the public policy and unclean hands doctrines, courts “should weigh the relative extent of each party’s wrong upon the other and upon the public and make an equitable balance”.Footnote 49I suggest that entertaining actions relating to fraudulent representation of pregnancy where the parties are in a non-marital cohabitation or a committed relationship will not harm the community but rather promotes honesty and integrity, which are part of the bedrock of a stable and democratic society.
Conclusion
This study has sought to examine the legal ramifications of pregnancy fraud in contemporary Ghana. It has shown that there is presently no law that categorically criminalizes false representation of pregnancy; however, the criminal justice system may respond where elements of the scam directly contravene the Criminal Offences Act 1960 and other criminal statutes. The article notes that civil proceedings may be initiated by the scammed against the scammer. However, such actions are likely to be declared invalid by the courts if the parties were not married at the time the sexual intercourse and the ensuing fraud occurred, on grounds of immorality and public policy. It expresses concerns about the courts’ apparent failure to appreciate that public policy is dynamic and to interpret it within the context of contemporary society.
Competing interests
None
Open access
